United States v. Hammond

912 F.3d 658

UNITED STATES of America, Plaintiff - Appellee,

v.Thomas Anthony HAMMOND, Defendant - Appellant.

No. 17-4702

United States Court of Appeals, Fourth Circuit.

Argued: November 1, 2018

Decided: January 4, 2019

ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before AGEE, KEENAN, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Agee and Judge Richardson joined.

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider whether the offense of New York first-degree robbery, in violation of New York Penal Law § 160.15, qualifies as a "crime of violence" for purposes of the United States Sentencing Guidelines § 4B1.1"career offender" enhancement. Thomas Anthony Hammond contends that the district court erred in sentencing him as a career offender, in part based on his prior conviction for that offense. Among other things, Hammond argues that the crime of first-degree robbery under New York law does not qualify as a crime of violence under the Guidelines’ "force clause." We disagree and, upon our review, conclude that New York statutory robbery, irrespective of the degree of the offense, is a crime of violence, because it necessarily involves the "use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). Accordingly, we affirm the district court’s judgment.

I.

In 2017, Hammond pleaded guilty to one count of attempted bank robbery and one count of bank robbery, both in violation of 18 U.S.C. § 2113(a). Before sentencing, the probation officer prepared a presentence report, which included a summary of Hammond’s criminal history. The criminal history showed that Hammond previously had been convicted of North Carolina common law robbery, and of New York first-degree robbery, in violation of New York Penal Law § 160.15.

Based on these convictions, the probation officer recommended that the district court impose the career offender sentencing enhancement under Guidelines § 4B1.1(a). Applying this enhancement, the probation officer calculated a Guidelines range of between 151 and 188 months’ imprisonment. Hammond contends that without the career offender enhancement, his advisory sentencing range would have been between 84 and 105 months’ imprisonment.

Hammond objected to his classification as a career offender, arguing that his conviction for New York first-degree robbery did not qualify as a crime of violence under the Guidelines.¹ The district court rejected Hammond’s argument and imposed a sentence of 168 months’ imprisonment, followed by three years of supervised release. Hammond now appeals.

II.

Hammond advances the same argument on appeal that he raised in the district court. Thus, we consider whether the offense of New York first-degree robbery, in violation of New York Penal Law § 160.15, qualifies as a crime of violence within the meaning of Guidelines § 4B1.1. This question presents an issue of law, which we review de novo. United States v. Jenkins , 631 F.3d 680, 682 (4th Cir. 2011).

A.

Before addressing Hammond’s arguments, we begin with an overview of the Guidelines’ career offender enhancement. Under Guidelines § 4B1.1, a defendant qualifies as a career offender if he has "at least two prior felony convictions for either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a)(3). A "crime of violence" is defined as any state or federal offense punishable by imprisonment for a term exceeding one year, that

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the force clause], or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion or the use or unlawful possession of a firearm ... or explosive material [the enumerated offense clause].

Id. § 4B1.2(a).

We focus our analysis on the force clause of subparagraph (1) set forth above, because that clause provides the most direct route to answering the question before us. To determine whether a conviction for a state offense is a crime of violence under the force clause, we apply the "categorical approach." United States v. Gardner , 823 F.3d 793, 802 (4th Cir. 2016). Under that approach, the state crime necessarily must have as an element the "use, attempted use, or threatened use of physical force against the person of another" to qualify as a crime of violence under the force clause. U.S.S.G. § 4B1.2(a)(1). The Supreme Court has interpreted the term "physical force" as "violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). If the elements of the state offense can be satisfied by "de minimis physical contact," the offense does not qualify categorically as a crime of violence. See United States v. Burns-Johnson , 864 F.3d 313, 316 (4th Cir. 2017).

In making this assessment, we review the elements of the offense and "the minimum conduct necessary for a violation" as defined by state law. See Gardner , 823 F.3d at 803 (citation omitted). To determine the "minimum conduct" required for the state offense, this Court must ensure that there is "a realistic probability, not a theoretical possibility, that a state would actually punish that conduct." United States v. Doctor , 842 F.3d 306, 308 (4th Cir. 2016) (internal quotation marks and citation omitted). With this framework in mind, we turn to consider Hammond’s arguments.

B.

Hammond raises two arguments in support of his contention that New York first-degree robbery does not constitute a crime of violence. He contends (1) that New York robbery, regardless of degree, does not include as an element the use of violent physical force as defined by the Supreme Court, and (2) that New York first-degree robbery in particular can be committed without the use of any force. We address each argument in turn.

1.

Hammond first argues that New York robbery does not qualify categorically as a crime of violence, because the offense does not require the use of violent physical force "capable of causing physical pain or injury to another person." Johnson , 559 U.S. at 140, 130 S.Ct. 1265. He contends that New York courts have interpreted New York’s robbery statutes to require only de minimis force, such as "mere snatching." We disagree with Hammond’s argument.

At the outset, we note that this Court, in an unpublished decision, recently concluded that New York second- and third-degree robbery constitute violent felonies under the identically-worded force clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). United States v. Bowles , 733 F. App'x 699, 702 (4th Cir. 2018). Because unpublished decisions may constitute persuasive, but not binding, authority, we independently examine the New York statutes. See Collins v. Pond Creek Mining Co. , 468 F.3d 213, 219 (4th Cir. 2006).

New York has divided its robbery offense into three distinct statutes (the New York robbery statutes), each involving an increasing degree of culpable conduct. N.Y. Penal Law §§ 160.00 - 160.15 ; see People v. Miller , 87 N.Y.2d 211, 638 N.Y.S.2d 577, 661 N.E.2d 1358, 1360-61 (1995). All the New York robbery statutes, however, require the same element of force, namely, "forcible stealing." See N.Y. Penal Law § 160.00. Stated differently, the "core crime" of New York robbery, irrespective of degree, is defined as "forcibly steal[ing] property." Id. ; Miller, 638 N.Y.S.2d 577, 661 N.E.2d at 1360 ("The essence of the [New York] crime of robbery is forcible stealing."). Accordingly, if "forcible stealing" requires the use of "force capable of causing physical pain or injury," Johnson , 559 U.S. at 140, 130 S.Ct. 1265, the New York robbery statutes all qualify as predicate offenses under the Guidelines’ force clause.

A person "forcibly steals property" under New York law when

in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:

1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or

2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.

N.Y. Penal Law § 160.00 (emphasis added). Although "physical force" in this context is not defined, New York law gives common-law terms their common-law meanings, unless context suggests otherwise. People v. King , 61 N.Y.2d 550, 475 N.Y.S.2d 260, 463 N.E.2d 601, 603 (1984). "Physical force" as used to define robbery under the common law has "long been understood to require violent force or intimidation of violent force." Perez v. United States , 885 F.3d 984, 988-89 (6th Cir. 2018) (citations omitted). Thus, the plain language of the New York robbery statutes suggests that the use or threat of violent physical force is required for all degrees of the offense. See United States v. Pereira-Gomez , 903 F.3d 155, 165 (2d Cir. 2018) ("By its plain language ... New York’s robbery statute includes as an element the use of violent force.").

This interpretation is supported by New York case law applying the New York robbery statutes. New York courts have interpreted "forcible stealing" to require "significantly more [force] than mere unwanted physical contact." People v. Curet , 256 A.D.2d 1017, 683 N.Y.S.2d 602, 603 (1998) ; see People v. Chatman , 38 A.D.3d...